ANL Cargo Operations Pty Ltd v Clark

[1987] TASSC 71

Serial No: B1/1987

List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              ANL Cargo Operations Pty Ltd v Clark [1987] TASSC 71; B1/1987

PARTIES:  ANL CARGO OPERATIONS PTY LTD
  v
  CLARK, RICHARD JOSEPH

FILE NO/S:  2981/1985
DELIVERED ON:  6 February 1987
JUDGMENT OF:  Wright J

Judgment Number:  B1/1985
Number of paragraphs:  18

Serial No B1/1987
List "B"
File No 2981/1985

ANL CARGO OPERATIONS PTY LTD v RICHARD ROSEPH CLARK

REASONS FOR JUDGMENT  WRIGHT J

6 February 1987

1. On the 1st November, 1984 at about 7.40am whilst riding his Honda motor cycle along the East Tamar Highway towards his place of work at Bell Bay, Martin Harold Briscoe collided with a Ford Fairmont sedan owned and driven by the defendant. At the time Mr. Briscoe was employed as a waterside worker by the plaintiff. As a result of the collision Mr. Briscoe suffered severe personal injuries and lost a considerable period of time from his work. As he was on his way to work at the time the accident happened he became entitled to workers‘ compensation payments from his employer amounting in all to $79,507.10.

1. The plaintiff now claims to recover indemnity in respect of this sum pursuant to the provisions of s.8H of the Workers’ Compensation Act 1927 on the basis that it was the defendant‘s negligent driving which caused the collision. It was agreed between the parties at the trial that the amount of $79,507.10 had been properly paid by the plaintiff to Mr. Briscoe and the only disputed issue for my determination is whether or not the accident was caused or contributed to by the negligent driving of the defendant. Mr. Briscoe was called to give evidence on behalf of the plaintiff and gave the following evidence. He said that at the time of the accident he had been resident at Invermay Road, Launceston for about 4 weeks. It was his practice to drive his 900cc. Honda motor cycle along the East Tamar Highway to his place of work at Bell Bay which is approximately 47 kilometres distant. On the 1st November, 1984 he was rostered to start work at 8.30am. He normally allowed himself an hour’s travelling time to go from his home to his place of work and he left home on this morning at about 7.30am.

1. Mr. Briscoe claimed that as he drove along the East Tamar Highway he came up behind an early model Holden Sedan which was about to make a right hand turn off the highway on to the Lilydale Road at the Rocherlea Tavern. He says he slowed down behind this vehicle and as he was doing so, two other vehicles passed him on his left hand side. The first of these vehicles was the defendant‘s sedan which was followed closely by a blue Japanese utility. After these vehicles had passed and the early model Holden ahead of him had made its turn, Mr. Briscoe continued on his way and soon caught up with the Ford sedan and the blue utility approximately 500 metres north of the Rocherlea turnoff. The Ford was still in front of the blue utility at this point.

1. Mr. Briscoe says that these vehicles were then approaching premises occupied by Repco on what was for north bound vehicles, the left hand side of the road. They both slowed down and the utility’s brake lights came on. He gained the impression that the defendant‘s vehicle was about to make a left hand turn into Repco. What is was that gave him this impression was never clearly explained. He did not claim that either of the vehicles ahead signalled a left hand turn or veered towards the left side of the road. At this point the road surface is divided into three lanes. The north bound carriage way on which the vehicles already mentioned were travelling is a single lane and the two other lanes are for the use of south bound traffic. The road at this point passes through what might be termed an industrial estate in that there are a number of industrial installations on either side of the road. The road markings separating the north and south bound lanes are, to say the least confusing. In some places there are double intermittent white lines, indicating that traffic may only turn across the opposite lanes for the purpose of driving into an entrance on the opposite side of the road (see Traffic (General & Local) Regulations 1956, regulation 28). In other places so far as north bound traffic is concerned, there are sections where there is a broken intermittent line on the inside and a continuous unbroken line on the outside indicating that north bound traffic may cross over those lines for the purpose of overtaking vehicles ahead if the roadway is clear. However the markings of this latter kind are so short in distance where they occur that it would in my assessment be almost impossible for anyone wishing to execute an overtaking manoeuvre to do so wholly within the distance permitted by such markings and, in any event, at the point where the collision occurred the markings on the road are double intermittent lines.

1. It is plain however that Mr. Briscoe failed to appreciate any significant distinction between the two different kinds of road markings and considered that neither of them prevented him from pulling into the south bound lane for the purpose of overtaking the two vehicles ahead. Upon making the assumption that one or both of the vehicles was about to turn into Repco this is what Mr. Briscoe commenced to do. He pulled into the centre lane and accelerated.

1. He says that he was watching his speedometer and he did not exceed 85 kilometres per hour. He was travelling within a 70 kilometre per hour speed zone but in the circumstances as the south bound lane was clear of traffic, he apparently saw nothing dangerous or untoward in making this manoeuvre. He said that as he passed the blue utility, it drifted slowly to the right but did not interfere with his progress. He successfully passed the utility and was about to pass the defendant’s Ford when it suddenly shot out at a 45 degree angle across the south bound lane. As a consequence of this unexpected action by the defendant, Mr. Briscoe said he had “nowhere to go”. He tried to go to the left and braked heavily but collided with the rear of the defendant‘s motor vehicle.

1. Under cross–examination Mr. Briscoe conceded that when interviewed by Police Sergeant Schieler approximately one month after the accident, he told the Sergeant that he had no recollection of the occurrence of the accident. He said that his memory had returned slowly since that time. He said that when he spoke to the Sergeant he was not in a position to speak clearly about the accident because of the head injuries he had sustained and the medication that he was taking.

1. Mr. Briscoe was also cross–examined as to the contents of an affidavit which he had filed in respect of other proceedings. In that affidavit he gave a somewhat different version of events and tended to suggest that the erratic driving of the blue Japanese utility had been the cause, at least in part of the subsequent accident. In that affidavit and also in the witness box he was insistent that neither the blue utility nor the brown Ford sedan driven by the defendant had exhibited a right hand turn signal prior to the collision.

1. Having seen and heard Mr. Briscoe’s evidence in the witness box, it was plain to me that what he told me as to the circumstances of the collision was not the result of a clear and genuine memory of the events. It was in my view essentially a reconstruction, not perhaps deliberately intended to be misleading but nonetheless quite unreliable. Furthermore there were occasions during cross–examination when he appeared to me to be self contradictory or evasive and in the result I am unable to place reliance on his evidence as to essential events.

1. The defendant and the driver of the blue utility, Mr. Barry Alan Bunton were interviewed separately by the police on the day of the accident. They were known to each other as work mates but do not appear to have been close friends. They gave a detailed outline of events to the interviewing police officers. What they said then was consistent with what they said in the witness box and what each of them said in the witness box was consistent with the evidence of the other. Neither of them had a recollection of passing on the inside of Mr. Briscoe‘s motor cycle at the Rocherlea turnoff. They were both driving to their place of work at Hammond Palmer which is on the opposite side of the road to Repco and some distance further north. They both signalled with their turn indicator that they intended to make a right hand turn as they approached Hammond Palmer. Each saw the other signal a right hand turn.

1. The defendant saw nothing of Mr. Briscoe’s motor cycle until after the accident, but he did check for traffic approaching from the rear before he executed the turning manoeuvre. The only vehicle he could see at that stage was the blue utility driven by Mr. Bunton.

1. Just before the defendant executed his turn Mr. Bunton saw Mr. Briscoe‘s motor cycle approaching rapidly from the rear. It had its headlight on and was travelling very fast. It was then in the centre lane and was travelling, according to Mr. Bunton’s estimate at a speed of about 120 kilometres per hour. In part Mr. Bunton‘s statement to the police on the 1st November, 1984 which was put in evidence reads as follows:

“We continued north at this speed” (60 kilometres per hour) “there were no other vehicles ahead of us. As we neared the Administration entrance to Repco on the East Tamar Highway I slowed to approximately 30 kph and Ricky” (the defendant) “slowed to the same speed. I saw that Ricky’s right hand indicator came on at the Administration entrance to Repco and he moved to the right hand side of his lane. I did the same. I looked in my rear view mirror on the side and saw a motor cycle coming up behind me with his headlight on. This vehicle was travelling north and appeared to me to be travelling very fast. The motor cycle was in the right hand lane for south bound traffic I estimate the speed of the motor cycle as he passed me to be about 120 kilometres per hour and accelerating. I noticed that Ricky had commenced to make his right hand turn into Hammond Palmer. Ricky would have been at about a 45 degree angle across the two south bound lanes when the motor cycle ran into the rear of Ricky‘s car. I saw that bike spun around and stopped (sic) a couple of metres to the left of where the actual collision occurred. The rider was thrown into the air and then rolled down the bitumen road about 5 or 6 times. The rider came to rest about 15 metres away. Ricky’s vehicle spun to the left and came to rest facing South in the gravel driveway leading into Hammond Palmer. Prior to the accident I could see what was going to happen so I backed off to about 10 kilometres per hour.”

I find that this passage contains an accurate description of how the accident occurred.

1. Mr. Bunton‘s allegations of speed are supported in large measure by the evidence of Mr. Roy England an engineer who was called by the defence and gave evidence of calculations from which he formed the opinion that before the application of brakes immediately prior to the collision, Mr. Briscoe’s motor cycle was travelling at a speed conservatively estimated by him at 90 kilometres per hour. He thought the speed could have been as high at 120 kilometres per hour but he was not prepared to concede that it would have been significantly less. Mr. England‘s evidence was not contradicted although at the outset of the case plaintiff’s counsel had announced that Mr. Haller–Griffits would be called to give expert evidence in relation to matters of speed. In fact Mr. Haller–Griffits was not called.

1. As the tenor of my comments may have indicated already, I prefer the evidence of Mr. Bunton and the defendant to that of Mr. Briscoe and I accept their evidence rather than his in all instances of conflict.

1. It seems to me that the collision occurred as a consequence of Mr. Briscoe attempting to overtake two vehicles which were on the point of executing a right hand turn. I find that both vehicles had signalled their intention to do this well before the defendant commenced to execute his turn and both vehicles had slowed down to a speed which of itself should have alerted following traffic of the possibility of some such manoeuvre.

1. In my opinion Mr. Briscoe attempted to overtake these vehicles at an excessive speed which I find to be in the vicinity of 90 to 100 kilometres per hour. It is not surprising to me that the defendant failed to see Mr. Briscoe‘s motor cycle prior to the collision because although it had its headlight burning, it was approaching from the rear of the utility and it was travelling at high speed. The motor cycle’s horn was not blown to warn the traffic ahead that it was about to pass.

1. This was known to the defendant as a bad section of road upon which collisions had previously occurred, but in the circumstances existing on the day of the accident, I think that he took all reasonable care and precautions before he attempted to turn into the Hammond Palmer entrance. He looked to the rear, he slowed down and he signalled an intention to turn well before he reached the entrance. I do not think that his lookout to the rear was defective and I am unable to find that his conduct was negligent. I think the effective causes of the accident were the plaintiff‘s excessive speed and his failure to observe the right hand turn signal given by either of the vehicles ahead of him, coupled with his failure to ensure that he understood their reasons for slowing down before he attempted to pass.

1. There will be judgment for the defendant